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Court of AppealPartially AllowedCivil Appeal No. 376 of 2014

Africa Oil Turkana Limited (previously known as Turkana Drilling Consortium Ltd) & 3 others v Permanent Secretary, Ministry of Energy & 17 others [2016] KECA 321 (KLR)

Court of Appeal of Kenya
29 July 2016
7,719 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~31 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that you cannot re-litigate a case you already lost by filing a new judicial review application with a few new parties.

What this practically means

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Executive summary

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Three consolidated appeals (lead file Civil Appeal No. 376 of 2014, consolidated with Civil Appeals Nos. 18 and 45 of 2015) arose from a ruling of the High Court at Kitale (J. R. Karanja, J) dated 5th March 2013, which dismissed the appellants' applications to strike out or dismiss a subsequent judicial review application by Interstate Petroleum Company Limited and two others in Judicial Review No. 1 of 2012. The applications were premised on res judicata, a previous judicial review application (JR No. 30 of 2010) by Interstate having been dismissed by Koome, J on 16th December 2010, with an appeal pending in Civil Appeal No. 64 of 2011. The High Court judge held, relying on three earlier decisions, that because res judicata under section 7 of the Civil Procedure Act does not apply to judicial review proceedings, res judicata may not apply to judicial review; he instead stayed the proceedings pending the hearing of the pending appeal. The Court of Appeal allowed the appeals. It held that the doctrine of res judicata transcends section 7 of the Civil Procedure Act and applies to judicial review litigation, endorsing this Court's statements in John Florence Maritime and Virgin Atlantic. Comparing the two applications, it found the claims substantially the same, and that adding applicants, respondents and interested parties did not evade the doctrine. The subsequent judicial review application was held to be both res judicata and an abuse of the process of the court. The Court set aside the High Court ruling, discharged the ex parte leave, dismissed the judicial review application in its entirety, awarded the appellants the costs of the appeals, and dismissed the cross-appeals by Edward Kings Onyancha Maina with no orders as to costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned Judge of the High Court was right in taking the view that the doctrine of res judicata is not applicable to judicial review proceedings
  2. 2.Whether the High Court erred in refusing to strike out or dismiss the subsequent judicial review application as res judicata or as an abuse of the process of the court
  3. 3.Whether the cross-appeal by Edward Kings Onyancha Maina has merit

Key legal issues

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01

Applicability of res judicata to judicial review proceedings

Holding

The High Court erred in holding that res judicata does not apply to judicial review; the doctrine applies to judicial review litigation and transcends section 7 of the Civil Procedure Act.

Reasoning

The court traced the general principles of res judicata, including the five principles identified by the English Supreme Court in Virgin Atlantic, and endorsed this Court's statement in John Florence Maritime that res judicata is a doctrine of general application irrespective of the nature of the proceedings. It concluded those views apply equally to judicial review litigation, rejecting the reasoning in the three decisions relied on by the High Court judge.

p. 12
02

Whether the subsequent judicial review application was res judicata

Holding

The subsequent judicial review application was substantially the same as the previous one dismissed by Koome, J on 16th December 2010, and was therefore barred by res judicata and an abuse of process.

Reasoning

The court compared the previous and subsequent applications and found the basis of the claims essentially identical: the same alleged fraudulent expropriation of Interstate's samples and secrets and the same blocks, notwithstanding the reduction in blocks claimed and the addition of applicants, respondents and interested parties. The only new complaint, that the earlier ruling was procured by concealment, was not a justifiable basis for a fresh action.

p. 13
03

Effect of adding parties or causes of action on a plea of res judicata

Holding

The inclusion of additional parties in the subsequent judicial review application does not defeat the plea of res judicata.

Reasoning

The court adopted the High Court's holding in Omondi v National Bank of Kenya that res judicata extends to matters that could and should have been brought in the earlier suit, and that parties cannot evade the doctrine by adding other parties or causes of action; they must bring all their cases at once and are forbidden from litigating in instalments.

p. 14
04

Cross-appeal competence

Holding

The cross-appeal failed; its grounds attacked the competence of the appeals rather than supporting the High Court decision, and it was too late to raise such objections.

Reasoning

The notices of cross-appeal under Rule 94 complained of defects in the record, filing out of time and irregularity of the certificate of delay. The court held these were matters for an application to strike out under Rule 84, and it was too late under Rule 104(b) to raise them at the hearing of the appeals.

p. 14

Legal principles established

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  • The doctrine of res judicata applies to judicial review proceedings; it is a doctrine of general application and is not confined to suits under the Civil Procedure Act
  • Adding new parties or causes of action does not evade res judicata; parties must litigate all claims at once
  • Proceedings barred by res judicata may also be struck out as an abuse of the process of the court

Court orders

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  1. 1.The appeals are allowed
  2. 2.The ruling of the High Court delivered on 5th March 2013 is set aside
  3. 3.The ex parte leave granted to the 16th to 18th respondents to apply for judicial review orders of mandamus and prohibition is discharged
  4. 4.The application for judicial review by the 16th to 18th respondents in Judicial Review Number 1 of 2012 is dismissed in its entirety
  5. 5.The appellants shall have the costs of the appeals
  6. 6.The cross appeals are dismissed with no orders as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Kitale
Judicial Review No. 1 of 2012 (Ruling dated 5/03/2013)
Jurisdiction invoked
Appellate jurisdiction under the Appellate Jurisdiction Act over appeals from the High Court (Civil Appeal No. 376 of 2014 and consolidated appeals; cross-appeal under Rule 94 of the Court of Appeal Rules)
Consolidated with
Civil Appeal No. 18 of 2015, Civil Appeal No. 45 of 2015

Relief refused

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Cross-appeal by Edward Kings Onyancha Maina seeking confirmation of the High Court decision on other grounds

The grounds in the notice were attacks on the competence of the appeals, not grounds supporting the High Court decision, and it was too late under Rule 104(b) to raise them

p. 14

Costs

The appellants shall have the costs of the appeals; the cross appeals are dismissed with no orders as to costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In our judgment therefore, the learned Judge erred in declining the appellants’ applications on the basis that the doctrine of res judicata does not apply to judicial review proceedings. We are therefore satisfied that there is merit in the appeals.
p. 14Ratio - res judicata applies to judicial review
The principles underlying the doctrine of res judicata undoubtedly transcend Section 7 of the Civil Procedure Act.
p. 12Doctrine of general application
Parties cannot evade the doctrine of res judicata by merely adding other parties or causes of action in a subsequent suit. They are bound to bring all their cases at once. They are forbidden from litigating in instalments.
p. 14Res judicata and added parties
In conclusion therefore, we allow the appellants’ appeals. The ruling of the High Court delivered on 5th March, 2013 is hereby set aside.
p. 14Disposition - appeal allowed, ruling set aside
The ex parte leave granted to the 16th to 18th respondents to apply for judicial review orders of mandamus and prohibition is hereby discharged. The application for judicial review by the 16th to 18th respondents in Judicial Review Number 1 of 2012 is hereby dismissed in its entirety.
p. 14Final orders - leave discharged, judicial review dismissed

Issues in the judgment

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minor

Internal inconsistency in party numbering: the judgment describes Edward Kings Onyancha Maina as the 18th respondent in the notices of cross-appeal but later refers to 'the 8th respondent' when discussing the same person's complaints

minor

Respondent 'Centric Imaging Inc.' is named as the 7th respondent but the cause title lists 'CENTRIC ENERGY CORPORATION' as 7th respondent

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Africa Oil Turkana Limited (previously known as Turkana Drilling Consortium Ltd) & 3 others v Permanent Secretary, Ministry of Energy & 17 others [2016] KECA 321 (KLR)", Case Analysis (2016). Civil Appeal No. 376 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/321/eng@2016-07-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.